Fisher v. Kenyon

• Decision Date: 16 November 1909
• Court: Washington Supreme Court
• Parties: FISHER v. KENYON.

104 P. 1127

56 Wash. 8

FISHER v. KENYON.

Supreme Court of Washington

November 16, 1909

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Millie Fisher against O. E. Kenyon. From a judgment for plaintiff, defendant appeals. Affirmed.

James T. Lawler, for appellant.

H. A P. Myers, for respondent.

MOUNT, J.

Respondent brought this action to recover damages for an alleged breach of promise of marriage. Upon a trial of the case to the court and a jury, a verdict was returned in her favor for $9,000. Upon defendant's motion for a new trial, the court required the plaintiff to remit $3,000 from the verdict, or submit to a new trial. This remission was made, and a judgment entered against defendant for $6,000. He appeals from that judgment.

He argues that the court erred in refusing a new trial because (1) The evidence is not sufficient to sustain the verdict and (2) the court allowed evidence of appellant's wealth at the time of the trial. He also argues that the judgment is excessive. There is abundant evidence of a contract of marriage in the record. While the defendant denied that there had ever been any such contract, the course of conduct of the parties, together with many circumstances in the case strongly corroborates the testimony of the plaintiff. This question was therefore one properly for the jury, and the finding of the jury is conclusive here.

It is argued that the court erred in permitting the respondent to prove the wealth of the appellant at the time of the trial. The record shows that, at about the time the complaint was served, written interrogatories were propounded to the appellant, one of which was: 'What is the reasonable value of your property?' Appellant answered 'Probably $25,000 would be a fair estimate.' At the trial, which took place about six months later, the value of appellant's property at the time of the trial was again inquired into. The rule is stated in Sutherland on Damages, vol. 3 (3d Ed.) § 988, as follows: 'The evidence of the defendant's financial ability must be limited to the time the breach occurred, or to such time as he might reasonably be expected to fulfill his contract; though when the trial of the action for the breach occurs soon after the contract was made, proof may be made of the property owned by the defendant at the time of the trial.' See, also, 2 Enc. of Evidence, 750; Vierling v. Binder, 113 Iowa, 337, 85 N.W. 621; Douglas v. Gausman, 68 Ill. 170; McKee v. Mouser, 131 Iowa, 203, 108 N.W. 228. In this case the date of the breach is not...